Citation Nr: 1757550 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-13 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to November 1977. This case comes before the Board of Veterans' Appeals Board on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied service connection for PTSD. In his August 2014 substantive appeal, the Veteran requested either a videoconference hearing or a Travel Board hearing, whichever was quickest. In September 2016, the Veteran was scheduled to appear for a videoconference hearing before a Veterans Law Judge. He failed to appear for said hearing, and has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). A review of the record indicates that the Veteran was also diagnosed as having unspecified depressive disorder, alcohol use disorder, substance induced mood disorder, major depression, and adjustment disorder. The United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying diagnoses recounted above, the Board has recharacterized the issue as stated on the title page of this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board's review of the claims file reveals that additional AOJ action is warranted. There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) (2017) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Entitlement to service connection for PTSD has specific requirements of medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2017) (requiring diagnosis to conform to DSM-IV and be supported by findings on examination report); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). VA has amended 38 C.F.R. § 4.125(a) to require the diagnosis to conform to DSM-5, which applies in this case as the claim was certified to the Board after August 4, 2014. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). VA treatment records show that the Veteran's primary care physician was treating him for PTSD in November and December 2013, and that he had a positive screen for PTSD in May 2012. He was also assessed with major depression in March 2000, adjustment disorder in June 2004, alcohol use disorder from 2007 to 2016, substance-induced mood disorder from 2007 to 2013, and depression in March 2016. In this case, the Veteran alleged three in-service stressors: 1) in August 1976, when the Veteran was in platoon 1066, an unnamed recruit from platoon 1067 fell out of marching order and died due to a heart attack or heat stroke during the Veteran's third week of boot camp; 2) the Veteran was on fire watch duty when he heard gunshots and later learned that an unnamed recruit committed suicide; 3); the Veteran was on fire watch duty when an unnamed recruit tried to go on unauthorized absence and the Veteran beat him with a flashlight until someone physically restrained him. The Veteran stated that he believed all the recruits were from platoons 1066 through 1068, and that the incidents took place at Marine Corps Recruit Depot (MCRD), in San Diego, California. In a June 2012 letter, the AOJ informed the Veteran that the information required to corroborate the stressors was insufficient to send to the US Army and Joint Services Records Research Center (JSRRC) because the Veteran did not provide sufficient information on the claimed stressors, to include dates within a 60-day period. However, the Board notes that in Gagne v. McDonald, 27 Vet. App. 397, 403 (2015), the Court held that limiting a request for records to a 60-day window was simply an effort to ease the workload of employees tasked with searching records, and did not establish that a search would be futile, or that the records did not exist or were not in the custodian's possession. It determined that the 13-month search period requested by the Veteran was not unreasonably long. Id. However, the Court also held that the duty to assist does not require unlimited searches, or "'fishing expeditions' over an indefinite period of time." Id. at 404. In this particular case, the Veteran served one year and five months on active duty and has identified three stressors. While the Board agrees that there is insufficient information to send to the JSRRC in regards to the second and third stressors as the Veteran has provided neither the name of the recruits involved nor time ranges when the incidents occurred, the Board finds that he has provided enough information concerning the first stressor. Specifically, the Veteran stated that the incident took place around August 1976 within his first three weeks of boot camp, that the injured or deceased recruit was part of platoon 1067, and that he was injured during a march and was taken away by car. The Board finds the search parameters narrow enough to warrant additional development in light of Gagne. Personnel records should be obtained to determine the exact dates for the Veteran's tour of duty at MCRD in San Diego, CA. For the dates that the Veteran was stationed at MCRD in San Diego, specifically between August and September 1976, the AOJ must contact the JSRRC to search relevant records of the incidents. See Gagne, 27 Vet. App. at 403; see also 38 U.S.C. § 5103A(c)(2) (2012); 38 C.F.R. § 3.159(c)(2). In addition, the March 2016 VA examiner diagnosed depression, unspecified; and alcohol use disorder in partial remission, stating that the Veteran's depression was associated in part with his alcohol use. The examiner then opined that it was less likely than not that the Veteran's depression was secondary to his service-connected hearing loss and tinnitus because treatment records documented other situational stressors, and alcohol use was the primary contributing factor to depression. However, the VA examiner did not address the November and December 2013 diagnosis of PTSD, and did not provide an opinion as to whether the Veteran's current psychiatric disability was due to or related to service, or aggravated by his service-connected hearing loss or tinnitus. As such, the Board finds the March 2016 opinion inadequate and that a remand is required to properly assess the nature and etiology of the Veteran's psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the Portland VA Medical Center since January 2016, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 2. Contact the National Personnel Research Center (NPRC) and/or other appropriate unit records depository and research agency, and request that it obtain and associate with the claims file copies of Veteran's military personnel records from when the Veteran served in MCRD San Diego, CA. All attempts should be documented in the claims file. 3. Then, the AOJ should attempt to corroborate the Veteran's claimed stressor through the appropriate channels, to include the JSRRC. The AOJ should provide the JSRRC with all pertinent information, to include copies of personnel records, units of assignment, and stressor statements, to include the unit the unnamed recruit served in (platoon 1067), the date (August/September 1976), and the circumstances of the injury/death of the recruit (collapsed of a heart attack or heat stroke during a march). If these events cannot be verified, that outcome should be stated. 4. After the stated developments have been completed and additional records obtained and associated with the claims file, schedule the Veteran for a VA psychiatric examination with a psychologist or psychiatrist, to determine whether any current psychiatric disorder is related to his active service or his claimed in-service stressors; or is related to or aggravated by his service-connected hearing loss and tinnitus. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders found; the examiner should also specifically determine whether the Veteran meets the diagnostic criteria for PTSD under the DSM-5 as noted by 38 C.F.R. § 4.125. Next, the examiner should opine as to the following: (a) Only if PTSD is diagnosed, the examiner should opine whether the Veteran's PTSD at least as likely as not (50 percent probability or greater) was caused by his military his claimed in-service stressor. The examiner should identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). In so doing, the examiner should determine whether the claimed stressor(s) has been verified. If the examiner determines that the Veteran does not have PTSD, he or she should address the Veteran's November and December 2013 PTSD diagnosis and discuss whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. 38 C.F.R § 4.125(b) (2017). (b) For any other diagnosed psychiatric disorder, the examiner is asked to opine whether such diagnosed psychiatric disorder at least as likely as not (50 percent probability or greater) began in or is the result of military service, or is either (a) caused or (b) aggravated by service-connected disease or injury. 5. After completing any additional development deemed necessary, readjudicate the claim on appeal. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).